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EXHIBIT 10.1.1
FIRST AMENDMENT TO
SEPARATION AND DISTRIBUTION AGREEMENT
THIS FIRST AMENDMENT TO SEPARATION AND DISTRIBUTION AGREEMENT is dated
August 6, 1999 and amends that certain Separation and Distribution Agreement,
dated as of September 23, 1998 (the "Agreement"), by and between QUALCOMM
INCORPORATED ("QUALCOMM") and LEAP WIRELESS INTERNATIONAL, INC. ("Leap").
Capitalized terms used herein and not otherwise defined shall have the
respective meanings assigned to them in the Agreement.
WHEREAS, the parties have agreed to amend certain provisions of the
Agreement and have determined that it is appropriate and desirable to set forth
the amendments to the Separation and the Distribution in this Amendment.
NOW, THEREFORE, the parties, intending to be legally bound, agree as
follows:
1. AMENDMENT OF SECTIONS 5.1 AND 5.2. Sections 5.1 and 5.2 of the
Agreement are amended and restated in their entirety to read as follows:
5.1 RESTRICTION ON INTERESTS. During the period commencing at the
Distribution and continuing until January 1, 2004, subject to the
express terms of written agreements to which Leap is a party in
existence at the time of the Distribution:
(a) Leap and its Affiliates shall not acquire Interests,
directly or indirectly, in Persons that deploy (or intend to deploy) a
Wireless System outside the United States unless (i) with respect to
Persons that do not have a pre-existing Wireless System that utilizes a
technology other than cdmaOne, such Person only utilizes or intends to
only utilize cdmaOne for such Wireless System and such Person agrees to
procure infrastructure and subscriber equipment from QUALCOMM in
accordance with the provisions of the Equipment Agreement, or (ii) with
respect to Persons that do have a pre-existing Wireless System that
utilizes a technology other than cdmaOne, the provisions of the last
sentence in this Section 5.1 are complied with as to such Person and
such Person agrees to procure infrastructure and subscriber equipment
from QUALCOMM for such Person's cdmaOne Wireless System in accordance
with the provisions of the Equipment Agreement; and
(b) Leap shall use commercially reasonable efforts to
cause each Related Entity that is not a Leap Affiliate to not acquire
Interests in other Persons that deploy (or intend to deploy) a Wireless
System outside the United States unless such Person only utilizes or
intends to only utilize cdmaOne for such Wireless System and such Person
agrees to procure infrastructure and subscriber equipment from QUALCOMM
in accordance with the provisions of the Equipment Agreement.
Notwithstanding the provisions of this Section 5.1, an Interest may be
acquired in a Person that has a pre-existing Wireless System that
utilizes a technology other than cdmaOne, but only so long as (i) the
proceeds from the acquisition of any such Interest
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are to be used by such Person solely to support and in connection with
the deployment of a cdmaOne Wireless System, (ii) reasonable efforts are
made to ensure that such proceeds are so utilized, and (iii) unless such
Person is already a party to an equipment requirements agreement with
QUALCOMM (in accordance with the provisions of the Equipment Agreement),
the efforts described above are undertaken to have such Person agree to
procure infrastructure and subscriber equipment in accordance with the
provisions of the Equipment Agreement. The parties agree that this
Section 5.1 shall not restrict Leap's investments in operating companies
in the United States.
5.2 RESTRICTION ON USE OF OTHER TECHNOLOGY Leap agrees that during the
period commencing at the Distribution and continuing until January 1,
2004, subject to the express terms of written agreements to which Leap
is a party in existence at the time of the Distribution:
(c) Leap will solely implement and utilize cdmaOne in
connection with its own (i) deployment and/or use of wireless
infrastructure equipment outside of the United States, and (ii)
distribution and sale of wireless subscriber equipment outside of the
United States, and (iii) provision of wireless communication services in
the world outside of the United States (the activities in clauses "(i)"
through "(iii)" collectively being referred to as the "Wireless
Activities");
(d) Leap will cause its Affiliates that do not have a
pre-existing Wireless System that utilizes a technology other than
cdmaOne to solely implement and utilize, cdmaOne in connection with each
such Affiliate's Wireless Activities;
(e) Leap will cause its Affiliates that do have a
pre-existing Wireless System that utilizes a technology other than
cdmaOne to solely implement and utilize cdmaOne in connection with each
such Affiliate's Wireless Activities to the extent those Wireless
Activities are funded, directly or indirectly, by Leap, and furthermore
Leap shall exercise commercially reasonable efforts to cause such
Affiliates to use cdmaOne or a cdmaOne overlay with respect to any
expansions of each such pre-existing non-cdmaOne Wireless System; and
(f) Leap will use its commercially reasonable efforts to
cause each Related Entity (that is not a Leap Affiliate) to solely
implement and utilize cdmaOne in connection with each such Related
Entity's Wireless Activities.
Except to the extent set forth in clause "(c)" of the immediately
preceding sentence with respect to Affiliates having pre-existing
non-cdmaOne Wireless Systems, (i) in no event will Leap or its
Affiliates implement, utilize or support in any respect global system
for mobile communications ("GSM"), time division multiple access
("TDMA") or any other digital technologies (or variants thereof) in
competition with cdmaOne in connection with the provision of wireless
communication services outside the United States, and (ii) Leap agrees
to exercise its commercially reasonable efforts to cause any Related
Entity not to implement, utilize or support in any respect GSM, TDMA or
any other competing digital technologies (or variants thereof) in
competition with cdmaOne in connection with the provision of wireless
communication services outside the United States. Leap further
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agrees to, and agrees to cause its Affiliates to, support and promote
cdmaOne based technology for commercial implementation by its corporate
partners and any consortium of which it is a member in connection with
any Wireless Activities engaged in by any such partners and/or consortia
in all parts of the world other than the United States. The parties
agree that this Section 5.2 shall not restrict Leap's investments in
operating companies in the United States or the technology choices of or
equipment deployment by Leap or operating companies in the United
States.
2. EFFECT ON CREDIT AGREEMENT. The Parties agree that there are no
provisions in the Credit Agreement dated as of September 23, 1998 (the "Credit
Agreement"), by and between QUALCOMM, Leap and ABN AMRO BANK N.V., as
Administrative Agent which would have the effect of continuing the obligations
of Leap removed as a result of the amendment set forth in Section 1 above. If
and to the extent that such restrictions do exist in the Credit Agreement, the
Parties terminate and permanently waive such restrictions.
3. FULL FORCE AND EFFECT; ENTIRE AGREEMENT. Except to the extent
expressly provided in this Amendment, the terms and conditions of the Separation
and Distribution Agreement shall remain in full force and effect. This
Amendment, and the Separation and Distribution Agreement constitute and contain
the entire agreement of the parties hereto and supersede any and all prior
agreements, negotiations, correspondence, understandings and communications
between the parties, whether written or oral, respecting the subject matter
hereof.
IN WITNESS WHEREOF, the parties have caused this Separation and
Distribution Agreement to be executed by their duly authorized representatives.
QUALCOMM INCORPORATED:
By: /s/ Steven R. Altman
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Name: Steve Altman
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Title: Executive Vice President
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LEAP WIRELESS INTERNATIONAL, INC.:
By: /s/ James E. Hoffmann
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Name: James E. Hoffmann
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Title: Sr. Vice President, General Counsel
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